Consolidation Coal Company

Plain-English summary

Consolidation Coal Company operated the Robinson Run No. 95 underground coal mine. MSHA alleged that damaged haulage doors were allowing ventilating air to enter an intake escapeway, in violation of the approved ventilation plan and 30 C.F.R. § 75.316. Judge Gary Melick found the condition significant and substantial, but concluded that the short period during which the cited damage existed did not show unwarrantable failure. The citation was modified from section 104(d)(1) to section 104(a), a related withdrawal order was affirmed through settlement, and the combined civil penalties were $900.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.316
• Outcome: The ventilation citation remained significant and substantial but was modified to section 104(a), the withdrawal order was affirmed, and Consolidation Coal was ordered to pay $900 in combined penalties.
• Key point: A brief-lived ventilation defect can remain significant and substantial without proving unwarrantable failure.

Full text (FMSHRC public release)

CCASE:
CONSOLIDATION COAL V. SOL (MSHA)
DDATE:
19871215
TTEXT:

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           Federal Mine Safety and Health Review Commission
                 Office of Administrative Law Judges

CONSOLIDATION COAL COMPANY, CONTEST PROCEEDINGS
CONTESTANT
Docket No. WEVA 87-129-R
v. Citation No. 2704568; 3/4/87

SECRETARY OF LABOR, Robinson Run No. 95 Mine
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
RESPONDENT

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA), Docket No. WEVA 87-193
PETITIONER A.C. No. 46-01318-03752
v.
Robinson Run No. 95 Mine
CONSOLIDATION COAL COMPANY,
RESPONDENT

                               DECISION

Appearances: Michael R. Peelish, Esq., Pittsburgh,
Pennsylvania for, Consolidation Coal Company;
James H. Swain, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary of Labor.

Before: Judge Melick

 These consolidated cases are before me under section 105(d)

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
801 et. seq., the "Act," to challenge a citation and order of
withdrawal issued by the Secretary of Labor under section
104(d)(1) of the Act and for review of civil penalties proposed
by the Secretary for the violations alleged therein. (FOOTNOTE 1)

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At hearing the Secretary moved for the approval of a settlement
agreement with the respect to Withdrawal Order No. 2704572
proposing a reduction in penalty from $750 to $500. I considered
the representations in support of the motion and determined that
the profferred settlement was appropriate under the criteria set
forth in section 110(i) of the Act. That determination is now
confirmed. Commission Rule 65, 29 C.F.R. 2700.65.

 The remaining citation at issue, No. 2704568, alleges a

"significant and substantial" violation of the mine operator's
ventilation plan under the regulatory standard at 30 C.F.R.
75.316 and charges as follows:

      The haulage doors located at No. 29 block that
      separated the 6 left, 4 North intake escapeway from the
      trolley haulage entry were not being maintained
      reasonably air tight and in a workmanlike manner as
      required by the approved ventilation plan. The haulage
      door beside the track was damaged to the extent there
      was a 22 inch opening across the top of the door, and
      the inby door was leaking air across the top and bottom
      of the door. The air being used to ventilate the
      trolley haulage entry was entering the intake escapeway
      through the doors. The haulage door beside the track
      was damaged on 02Ä28Ä87 and new doors were ordered
      03Ä02Ä87 but there was no check curtain or stopping
      installed to stop the air from the trolley haulage
      entry from entering the intake escapeway.

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In relevant part, the mine operator's ventilation plan provides
that "intake escapeway areas being isolated shall maintain a
constant air pressure from the intake escapeway to the track."
The plan also provides that "all [haulage] doors will be
substantially built and maintained in a workmanlike manner."

 The Consolidation Coal Company (Consol) does not dispute the

allegations set forth in the citation at bar nor does it dispute
that such allegations constitute a violation of its ventilation
plan. Consol maintains however that the violation was neither
"significant and substantial" nor caused by its "unwarrantable
failure" to comply with the ventilation plan.

 Ronald Tulanowski, an inspector for the Federal Mine Safety

and Health Administration, (MSHA), entered the subject mine on
March 4, 1987, at about 12:10 a.m. accompanied by company safety
representative Sandy Eastham and union safety committeeman, Cecil
Wilson. Proceeding to the 6 left, 4 North longwall section the
group exited the personnel carrier in the No. 3 (track) entry at
the No. 29 block. As he walked toward the haulage doors
Tulanowski saw that the first door was bent out of shape and
knocked off a hinge. This left a large opening at the top some 22
inches wide and 14 feet long through which ventilating air was
passing from the No. 3 entry to the No. 2 entry (the intake
escapeway). On the No. 3 entry side of the haulage door closest
to the No. 3 entry the words "danger bad door" were written in
chalk but no other markings or warnings were noted on either of
the two haulage doors. The damaged door could not be rehung so it
was therefore necessary to erect a temporary check curtain. Union
safety committeemen Cecil Wilson corroborated Tulanowski in
essential respects.

 Eastham reportedly told Tulanowski that that the haulage

door had been damaged on February 28th and that a new door had
been ordered. Safety Supervisor Richard Paugh also informed
Tulanowski that while the door had been previously damaged, it
had also been repaired and was not leaking air. Tulanowski
concluded that the violation was serious and "significant and
substantial" because, in the event of a mine fire, smoke would
contaminate the intake escapeway and working faces so that
persons trying to escape through the smoke could stumble for lack
of visibility or be overcome by smoke inhalation. It was about
400 to 500 feet from the doors to the face.

 Tom Harrison was Consol's longwall coordinator during this

time. At hearing he reviewed the preshift and onshift examination
books beginning with the February 28, 1987, midnight shift (12:00
a.m. to 8:00 a.m.). He noted that a preshift examiner who
performed his exam between 5:00 a.m. and 7:15 a.m.

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on that date, had written the words "air lock door knocked out".
That defect was noted again on preshift examinations through
March 1, 1987. The examination for the midnight shift on March 2,
1987, showed that the condition had been "corrected" (Joint
Exhibit No. 2)

 Harrison himself learned of the defective haulage door upon

reviewing the examination books on March 2nd and went into the
mine to see the condition himself. Harrison then made temporary
repairs on the door and wired it shut creating a "temporary
stopping". He confirmed that the air was moving in the right
direction and then wrote the words "danger-bad door" on the No. 3
entry side of the damaged door. He examined the door again on
March 3rd at about 9:15 a.m. and it was in the same condition.
According to Harrison the purpose of the doors was to permit the
scoop to enter the track entry to pick-up crib blocks. The scoop
was normally kept in a cross-cut off the No. 2 entry when not in
use.

 Stanley Nicholas, the long wall foreman, testified that he

performed the preshift examinations on March 3rd, between 9:00
p.m. and 11:00 p.m. He visually inspected the airlock doors and
confirmed that the trackside door was sealed. He recalled seeing
the notation "danger-bad door" chalked upon the door.

 Consol argues that the admitted violation was not

"significant and substantial" because it existed only briefly. It
maintains that the subject door had been wired shut and sealed by
Tom Harrison on March 2, 1987. Harrison examined the door again
on March 3, 1987, around 9:15 p.m. and found that air was not
leaking into the intake escapeway. Finally it is undisputed that
that Foreman Stanley Nicholas performed a examination between
9:00 p.m. and 11:00 p.m. on March 3, 1987 and found the doors to
be sealed with no air movement into the intake escapeway. Consol
therefore maintains that the damage to the door cited by
Inspector Tulanowski must have been new damage that occurred
sometime after that preshift examination on March 3, 1987, and
before the time of the inspection at approximately 12:45 a.m. on
March 4th.

 The evidence in support of Consol's argument herein is

indeed undisputed and it may therefore be inferred that the
damaged condition observed by Inspector Talanowski leading to his
citation occurred sometime between 9:00 p.m. and 12:45 the next
morning. However the fact that the inspector discovered the
violative condition as soon as he did, does not negate the
"significant and substantial nature of it. The operative time
frame for determining the reasonable likelihood of an injury
includes the expected continuance of normal mining operations.
Secretary v. Halfway Incorporated, 8 FMSHRC8 (1986). The evidence
is not sufficient to clearly establish when the new

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replacement door would have been erected to correct the violative
condition in this case. Thus the serious hazard of smoke from a
fire in the track entry which would reasonably be likely to pass
into the intake escapeway and to the face areas, would be
expected to exist for some time. Under the circumstances the
violation was indeed serious and "significant and substantial."
Secretary v. Mathies Coal Co., 6 FMSHRC 1 (1984).

 Consol also argues that the violation was not caused by its

"unwarrantable failure" to comply with the cited standard. In
Zeigler Coal Company, 7 IBMA 280 (1977) the Interior Board of
Mine Operations Appeals stated as follows:

      [a]n Inspector should find that a violation of any
      mandatory standard was caused by an unwarrantable
      failure to comply with such standard if he determines
      that the operator involved has failed to abate the
      conditions or practices constituting such violation,
      conditions or practices the operator knew or should
      have known existed or which it failed to abate because
      of a lack of due diligence, or because of indifference
      or lack of reasonable care.

 The Commission has concurred with this definition to the

extent it has found that an unwarrantable failure to comply may
be proved by showing that the violative condition or practice was
not corrected or remedied, prior to the issuance of a citation or
order, because of indifference, willful intent, or a serious lack
of reasonable care. United States Steel Corp., v. Secretary of
Labor, 6 FMSHRC 1423 (1984). Upon the credible evidence in this
case it is clear that the violative condition existed for such a
brief period of time i.e. from sometime between the required
pre-shift exam between 9:00 p.m. and 11:00 p.m. on March 3rd and
12:45 a.m. on March 4th that I cannot find that the violation was
the result of indifference, willful intent, or a serious lack of
reasonable care. The violation was not therefore caused by the
"unwarrantable failure" of the operator to comply with the cited
standard. For the same reasons I find Consol to be chargeable
with lesser negligence.

 In reaching this conclusion I have not disregarded the

Secretary's argument that the violation had actually existed
since February 28th when the damaged haulage door was first noted
in the preshift book and that it remained uncorrected at least
until the second shift on March 2nd, when Mr. Harrison testified
that he sealed the door. The condition noted in the preshift book
on February 28th has not been shown however to be the same
condition that was cited on March 4th. The operator cannot fairly
be charged with "unwarrantable failure" because of an earlier
condition that has not been shown to have been the same or even
similar to the condition cited five days later. It is

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apparent moreover that the haulage door suffered additional
damage in the few hours before the subject inspection and this
was the damaged condition cited by Tulanowski on March 4th.

 The Secretary also argues that since only the No. 3

entry-side-door was dangered off with the chalk sign "danger-bad
door" and not the No. 2 entry door through which the scoop would
be expected to first travel, there was insufficient warning to
the scoop operator. In other words the Secretary argues that the
No. 3 entry was not restricted effectively from use even after
its temporary repair on March 2nd. Again however the failure to
effectively restrict travel through the damaged haulage door for
periods before the preshift exam between 9:00 p.m. and 11:00 p.m.
on March 3rd cannot fairly be considered in relation to the
citation at bar. The Secretary has not proven that a violation
did in fact exist at any time before that preshift examination.
Inasmuch as the evidence in this case shows that the specific
violative condition cited herein did not occur until sometime
after that preshift examination and before 12:45 a.m. on March
4th, the failure to have restricted travel during that relatively
brief period of time was not therefore due to "indifference,
willful intent or a serious lack of reasonable care".

 Under the circumstances Citation No. 2704568 must be

modified to a citation under section 104(a) of the Act. In
assessing a civil penalty in this case I have also considered
that the operator is large in size and has a substantial history
of violations. I have also considered that the cited condition
was abated as prescribed by the Secretary. Under these
circumstances I find that a civil penalty of $400 is appropriate.

                             ORDER

 Citation No. 2704568 is modified to a significant and

substantial citation under section 104(a) of the Act. Order No.
2704572 is affirmed. Consolidation Coal Company is hereby
directed to pay civil penalties of $900 within 30 days of the
date of this decision.

                               Gary Melick
                               Administrative Law Judge
                               (703) 756Ä6261

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
~FOOTNOTE_ONE

 1 Section 104(d)(1) of the Act reads as follows:

      If, upon any inspection of a coal or other mine, an

authorized representative of the Secretary finds that there has
been a violation of any mandatory health or safety standard, and
if he also finds that, while the conditions created by such
violation do not cause imminent danger, such violation is of such
nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard,
and if he finds such violation to be caused by an unwarrantable
failure of such operator to comply with such mandatory health or

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safety standards, he shall include such finding in any citation
given to the operator under this Act. If, during the same
inspection or any subsequent inspection of such mine within 90
days after the issuance of such citation, an authorized
representative of the Secretary finds another violation of any
mandatory health or safety standard and finds such violation to
be also caused by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring the operator
to cause all persons in the area affected by such violation,
except those persons referred to in subsection (c) to be
withdrawn from, and to be prohibited from entering, such area
until an authorized representative of the Secretary determines
that such violation has been abated.